Volume 81 — Wisconsin Reports

This action was commenced April 6, 1889, to cancel and set aside the assessment of taxes upon the lands of the plaintiff the town of… Held: except as therein stated. 3. That sub-school-districts Nos. 2 and 8 did not hold annual meetings in 1887, and the clerks of said sub-school-districts, respectively, did not at any time make and transmit to the secretary of the town board of school directors the written reports required by law; that said town had adopted the township…

<p> Contract: Pleading: Parties. </p> <p>1. In an action for breach of a contract the complaint alleged that the parties had agreed to enter into a partnership in the business of buying sheep and having them fattened for market — the defendant to attend to the purchasing in Chicago, and the plaintiff to arrange for having the sheep kept by farmers in Wisconsin; that, after the plaintiff had expended much time and labor in respect thereto, the defendant wrote to him from Chicago, saying: “ C, wants to go in with me and put out a lot of sheep to farmers to feed; and I inclose a blank contract, which explains about the nature of the deal. I told him that you and I had intended to do something in that line, and he said, ‘ Hire S. [the plaintiff] and give him $500. . . . Now, if you can find out about what can be done in that line, we can furnish all the good sheep they can take. It will take a good deal of money to run the thing, and a big risk; and I think you would as soon take a sure thing as the chances. I think it would be safe for us to give 4c. for the gain up to the 1st of January. If fed through till spring, might give 5c. But see what you can do on the 4c. basis, .and write soon.” The blank contract referred to, which was set out in the complaint, was one to be entered into between the defendant and each farmer taking sheep to feed, and provided for the keeping thereof, the manner of weighing, etc., the amount to be paid for each pound of increase being left blank. The complaint further alleged that the plaintiff at once wrote to defendant that he would accept said propositions; that pursuant to said agreement defendant shipped a large number of sheep; that plaintiff spent much time and labor in arranging for their keeping and in making contracts with farmers; that defendant finally neglected and wholly failed to carry out said agreement, and now denies that said agreement was made, and refuses to pay the plaintiff said $500 or any sum whatever. Held, that.the complaint stated a cause of action on an express contract.'</p> <p>2. The last paragraph of the complaint alleged that plaintiff’s services were worth $500. Held, that this cause of action on a quantum, meruit might be joined with that on the express contract.</p> <p>3. C., referred to in defendant’s letter-, was not a necessary party defendant, it not appearing that he was bound by or interested in the contract</p>

On September 26, 1888, the plaintiff recovered judgment upon a policy of insurance in the circuit court for Brown county against the Dwelling House Insurance Company, a corporation created and organized under the laws of Massachusetts, and having its principal place of business at Boston, by reason of loss by fire of a dwelling-house, barns, and property therein, for $3,416.76.

Action upon a bond conditioned for the payment of all the debts owing by a certain firm at the time of its dissolution. The facts will sufficiently appear from the opinion. to the point that all contemporaneous written agreements were admissible in evidence and should be construed together, cited 1 Greenl.

<p> Common schools: Salary of county superintendents: Number of inhabitants in district, how ascertained. </p> <p>Sec. 708, R S., provides that eacli county having over 15,000inhabitants “ according to the census last preceding,” may be divided into two superintendent districts. Sec. 704 provides that tlie compensation oE superintendent shall be fixed within certain limits in districts containing more than 5,000 and less than 10,000 inhabitants, and within certain other limits in districts containing more than 10,000 inhabitants, excluding certain cities “ mentioned in the next preceding section.” Held, that the two sections should be construed together, and that under sec. 704 the number of inhabitants is to be determined by the census last preceding.</p>

The facts are stated in the opinion. They argued, among other things, that the plaintiff was guilty of such negligence after he was informed of the approach of the engine as precludes a recovery. Blith v. Birmingham Water Works Go. 11 Exch. 781, 784; Railroad Go. v. Jones> 95 U. S. 439, 441; Lcmghoff v. M. da P. du O. P. Oo. 23 Wis. 43; Haas v. C. da PL.

Action to recover damages for the destruction of plaintiff’s property by fire, alleged to have been caused by the failure of the defendant to supply the fire hydrants in the vicinity of said property with water for fire service. The plaintiff appeals from an order denying a motion to strike out and overrule a general demurrer to the complaint. 1. One who owes a duty to the public is liable to any individual specially injured by its nonperformance.

Tbe action is to recover tbe value of plaintiffs dog, which defendant bad theretofore shot and killed. Defendant answered that immediately before such killing tbe dog entered bis bouse, and frightened and attempted to bite bis wife and child. Tbe testimony on tbe subject most favorable to defendant was given by himself, and is as follows: “ The dog came there that morning,-— came into the house. I was back of the house, digging potatoes with the hired man. . . .

Action for the unlawful conversion of a span of horses and a cutter. The principal facts will sufficiently appear from the opinion. The defendant demanded a special verdict, and thirty-two questions were submitted to the jury.

On and prior to August 17, 1887, the plaintiff was the owner of a farm of eighty acres in Lima, Rock county.

<p> Municipal corporations: Street improvements: Requirements an passage of resolution by common council: Approval of mayor: Inconsistent provisions of charter. </p> <p>Th<^ charter of Bacine (ch. 313, Laws of 1876) provides, in tit. IV, sec. 7, that every ordinance, resolution, etc., passed by the common council shall, before it takes effect, be presented to the mayor for his approval. If he does not approve, he shall return it with his objections stated in writing, which objections shall be submitted to the council at their next meeting and entered on the records. If, after reconsideration, two thirds of all the members elected vote to pass the ordinance or resolution, it shall take effect; otherwise, not. The vote, after receiving the objections of the mayor, shall betaken by yeas and nays and entered in the journal. Tit. VI, sec. 6, relating to street improvements, provides that no such work shall be done, in the absence of a petition therefor by a majority of the resident property owners to be affected, unless the resolution of the council ordering tne work shall receive the votes of three fourths of the aldermen elected; that the resolution in such a case shall not be passed at the same meeting at which it is first considered, but shall lie over until a future meeting; and that the vote on its passage shall be taken by yeas and nays and entered in the journal. Held, that it is not necessary to present to the mayor for approval a resolution for the grading of a street passed, in accordance with the latter section, in the absence of a petition of the property owners. By enacting in sec. 6 of art. VI the material safeguards against hasty and improper action contained in sec. 7 of tit. IV, and by requiring in sec. 6 a greater number of votes for the adoption of the resolution than would be necessary to pass it over the mayor’s objections, the legislature manifested an intention to except such a resolution from the operation of the provisions of said sec. 7.</p>

<p> Married women: Deed from husband to wife: Ejectment. </p> <p>A conveyance of land by a husband directly to his wife, upon no other consideration than natui’al love and affection, vests in her no legal title or right of possession; and her grantees obtain no better title or right, and cannot maintain ejectment for the land.</p>

<p>APPEALS from tbe Circuit Court for Milwaukee County.</p> <p>On December 17, 1890, tbe plaintiff filed bis verified petition in tbe circuit court of Milwaukee county, in which be alleged, among other things, in effect, that be was tbe owner in fee of lots 4 and 5, in block 32, in the Second ward of Milwaukee, fronting on tbe east side of Commerce street; that the western boundaries of said lots extended west, respectively, to tbe center of said street and east to tbe Milwaukee river; that in 1885 tbe defendant company unlawfully laid upon a portion of said lot 4 its railway track along and across said street, and entered upon and dug up and removed soil therefrom, and unlawfully appropriated tbe same to its own use, without the consent or authority of the plaintiff, and operated its road thereon, and bad been in possession thereof ever since; that said company bad acquired no title to said land or any part thereof, or any right thereto, and had delayed and omitted to condemn the same or have tbe damages thereto appraised. The prayer of tbe petition was that commissioners be appointed to appraise such damages to tbe plaintiff, and that tbe costs and expenses of said appraisal and of all proceedings thereunder be charged against said company.</p> <p>On December 17, 1890, the said court ordered that said petition be heard before said court December 27, 1890, or as soon thereafter as counsel could be heard, and that a copy of tbe order and petition be served upon the defendant. Such service was made December 18, 1890. On January 3,T891, the defendant company offered to allow judgment to be taken for $100 damages, with' the costs incurred by tbe petitioner to that date. On the same day tbe defendant served its verified answer to said petition, and, among other things, therein denied any knowledge or information thereof sufficient to form a belief as to whether the plaintiff was the owner in fee simple of said lots.</p> <p>Upon the bearing of said matter on said last-mentioned day, the court, among other things, found that no sufficient cause had been shown by said company why the prayer of said petition should not be granted, and ordered that said prayer be granted. And it was therein further ordered and adjudged by the court that the track of the company laid in said Commerce street in the front of said petitioner’s lots was so laid in 1885, and was laid across and upon the northwest corner of that portion of lot 4 extending to the center of said street, and that since that time the said company had used the same in operating its railway, and was liable to the petitioner for the damages sustained thereby to his said lands; that, the company having neglected and omitted to apply for the appointment of such commissioners, the petitioner had lawful right to file said petition and institute proceedings therein for that purpose; and that three disinterested and competent freeholders and residents of said county be, and they were thereby, severally appointed such commissioners, with the usual powers in such cases, on taking the requisite oath, and their first meeting fixed for January 10, 1891.</p> <p>On January 5, 1891, said commissioners took the requisite oath, and February 3, 1891, a majority of them made and filed their report, awarding to the plaintiff $3,501. On February 10, 1891, the defendant company appealed from said award of said commissioners to said circuit court. On May 18, 1891, the court made an order vacating an order fixing and directing payment of commissioners’ fees, and in lieu thereof it was ordered by the court that the defendant company forthwith pay to the plaintiff the sum of $180 as and for the fees of said commissioners therein, which was thereby fixed as the compensation to be paid to them,— that is to say, the sum of $60 each; and it was therein further ordered that the fixing of the other costs of the plaintiff in this matter, including compensation due.to the plaintiff’s attorney herein, be deferred without prejudice until a further order of the court. From that order the defendant appeals to this court.</p> <p>On June 6, 1891, the defendant company obtained an order that the petitioner show cause on June 18,1891, why the order of May 18, 1891, should not be modified by making said commissioners’ fees therein fixed payable on the determination in favor of the petitioner of the appeal taken from the award of said commissioners, and why said order should not be amended by referring therein to the records, petitions, affidavits, and papers read or used by the parties upon the application for said order. That order to show cause was based upon an afiidavit and papers to the effect that the petitioner was not the owner of that portion of said lots occupied by said street and said company. Upon the hearing of that motion it was ordered that said application to modify said order of May 18, 1891, be, and the same was thereby, denied and overruled, with costs. From that order the defendant also appeals to this court.</p> <p>They contended, inter alia, that the appeal from the award of the commissioners opened the case as to the title of the petitioner. Robbins v. M. do JS. R. Go. 6 Wis. 636; Diedrieh v. F. W. IT. R. Go. 42 id. 248; Wooster v. S. R. V. R. Go. 57 id. 311; Washburn v. M. do L. W. R. Go. 59 id. 383; UniaeJce v. G., M. do St. P. R. Go. 57 id. 108. Until the question of title is .determined it ttouM be most unjust to allow the petitioner to recover costs. If, therefore, it is proper to provide for the payment of costs by order, the order of May 18th was prematurely made. But the only proper practice is to add the costs to the damages if the petitioner recovers, and enter a judgment for the whole amount, as his just compensation. Tur-ley v. Logan Go. 17 Ill. 151; Oczrroll v. UanrJy, 21 Mo. 66,. 69; Supervisors of Onondaga v. Briggs, 3 Denio, 174; Wcur-field v. Wathins, 30 Barb. 395, 401.</p>

<p> Right of foreign receiver to sue in this state: Judicial comity: “ Trustee of an express trust.” </p> <p>1. A receiver appointed in a creditor’s suit in an Illinois court has no right or title to the property of the debtor situated in this state, and cannot maintain an action in this state to set aside an alleged fraudulent conveyance of property by such debtor.</p> <p>2. Judicial comity does not require the courts of this state to allow such an action to be prosecuted here.</p> <p>3. If such a receiver were a trustee of an express trust within the meaning of sec. 4280, R. S., that section would not apply, because no part of his trust estate is situated in this state. But that section was not intended to apply to a mere officer of court.</p>

<p> Railroads: Condemnation of land: What constitutes taking9 Tracks laid on one side of street: Proceedings instituted by owners on opposite side: Adverse possession: Color of title: Power of board of public works to order removal of track. </p> <p>1. Prior to the enactment of ch. 255, Laws of 1889, the owner of land on one side of a street was not entitled to maintain condemnation pro- • ceedings by reason of the building of a railroad track along the other side of the street, wholly beyond the center line thereof.</p> <p>2. A finding of the trial court that a track so built before the enactment of said ch. 285 was illegally laid down, is not sufficient to give the owner of land on the opposite side of the street a right to maintain condemnation proceedings under said act, since the track might, nevertheless, have become legally established, and thus be within the saving proviso contained in sec. 1 of the act.</p> <p>3. The fact that when the track was built the street was not restored to its former condition of usefulness, or that the track has since been used in an unlawful manner, is immaterial upon the question of the right to maintain condemnation proceedings.</p> <p>4. If the lot-owners on the side of the street on which the track is laid make no objection, the lot-owners on the opposite side cannot object for them that the right to lay the track was never acquired by condemnation proceedings.</p> <p>5. A railroad company had deeds purporting to convey to it two blocks on the side of the street upon which its track was laid, and had been in actual adverse possession under said deeds for more than ten years. In condemnation proceedings instituted by lot-owners on the opposite side of the street the petitioners made affidavit that in their opinion the grantors in said deeds never owned said blocks and that the deeds were obtained by the company fraudulently for the purpose of acquiring color of title. Held, that such affidavits proved nothing against the company’s title.</p> <p>6. Subd. 5, sec. 11, ch. 119, Laws of 1872 (providing that a railroad company should have power to construct its road across, along, or upon any street or highway which the route of its road should intersect or touch), gave the company authority to lay the track in question in a street in Milwaukee, and after the track was so laid such authority was not taken away by subd. 48, sec. 3, subch. IY, ch. 184, Laws of 1874, giving to the common council the power “ to direct and control the location of railroad tracks ” within the city.</p> <p>7. An order of the board of public works of Milwaukee, requiring a railroad company, on twenty-five days’ notice, to tear up a part of its track, which would prevent it from running trains to its general depot and continuously over its lines beyond such depot, as it had done without objection or interruption for eighteen years, is beyond the authority of said board.</p>

The facts are stated in the opinion. They contended, inter aUa, that where there is a parol agreement between two persons to extend their partnership dealings to, and to include the purchase of, real estate, and the funds of the copartnership have been used in the purchase of real property pursuant to such agreement, and the title to said real estate taken in the name of one partner, the other partner may, on proof of these facts, establish his interest in said real estate.

The plaintiffs,- as copartners under the firm name of the Tigerton Lumber Company, doing business at Tigerton, Wis., entered into a written contract with Greilick Bros., of Milwaukee, February 16, 1888, wherein and whereby the said Tigerton Lumber Company in effect agreed, among other things, to sell and deliver “ to the order of sedd Grei-lick Bros.” their entire cut of lumber therein described, shipping to commence by July 1, 1888.

In March, 1881, the respondent, Casgrain, entered into a contract with the appellant county to construct waterworks at the county hospital.

■ Action by the respondent, as assignee of the Roll Manufacturing Company, an insolvent corporation, to recover of appellant the purchase price at par of seventy-five shares of stock of the said corporation, at $25 per share. It was undisputed that the appellant, Terry, on the 14th day of January, 1888, signed a written subscription for 167 shares of said capital stock, in which he agreed to himself take or to sell to others said 167 shares of stock.

Action to recover damages for an alleged libel. At the time the publication complained of was made, the defendant was a corporation, and the proprietor and publisher, in the city of Milwaukee, of a newspaper called the “ Daily Review.” In the issue of such newspaper of February 18, 1889, the defendant published an article headed, “Was he man or woman?” in which it was stated that one W. J. Allen was found dead in his bed on the preceding morning, and that, on a post mortem…

EEPOETED from the Circuit Court for Green Lake County. Information for rape. The questions reported are stated in the opinion.

The plaintiff in error, George Jackson, was married March 11, 1889. He was a farmer and resided in the town of Eagle, on the road leading from the village of Eagle, near the center of section 22 of that town, and running directly north about three miles; then northeasterly about half a mile to McCabe’s corner; and from thence easterly, on a very crooked road, for about a mile, to his residence in section 2. His brother, Henry, also lived with him.

<p>Criminal Law and Practice. (1-4) Change of venue. (5-10) Larceny: Evidence.</p> <p>1. Refusal to grant a change of venue on the ground of local prejudice cannot be held error where the affidavits in opposition to the motion make substantially as strong a showing as those in favor of it.</p> <p>2. After the denial of such a motion it was not error to refuse leave to file additional affidavits in support thereof, no reason being given for the failure to file them at the proper time, and the motion not being renewed or a new motion made.</p> <p>3. With reference to the Ashland municipal court the fifteenth judicial circuit, which included Ashland county and all the counties contiguous thereto, was an “adjoining circuit,” within the meaning of ch. 218, Laws of 1883. Baker v. State, 80 Wis. 416, followed.</p> <p>4. Calling in the judge of an adjoining circuit as provided for in ch. 218, Laws of 1883, is a “ change of venue,” within the meaning of sec. 4680, B. S. (which provides that not more than one change of venue be awarded in any cause).</p> <p>5. The refusal to strike out incompetent testimony is an immaterial error where the same facts were proven by other witnesses without objection and no attempt was made to contradict them.</p> <p>6. On a trial for larceny of money, evidence to show that the defendant was financially in poor circumstances before the larceny, and that after it he had money to spend, was admissible.</p> <p>7. The defendant being the bookkeeper of the bank from which the money was stolen while deposited there by the owner for safekeeping, evidence that he had for some, time been a defaulter to the bank, and that he had falsified the books to conceal that factj' was admissible as tending to show a motive for the larceny.</p> <p>8. The cashier of the bank was asked, on cross-examination, whether he had not authorized the defendant to overdraw his account The examination in chief not having been directed to that subject, it is held that this question was rightly excluded as not proper cross-examination.</p> <p>9. The cashier having been examined as to the general condition of the accounts and balance-sheets of the bank and the alleged falsification thereof by the defendant, it was proper cross-examination to ask him whether he had not made to the state treasurer false and fictitious reports verified by his oath; but the exclusion of such question was not such an error as would work a reversal.</p> <p>10.Secondary evidence is not admissible to prove the contents of a letter claimed to have been lost, until there is evidence that a proper search therefor has been made.</p>

<p>APPEAL from the Circuit Court for Rock County.</p> <p>Garnishment. The facts are stated in the opinion.</p> <p>to the point that the gift of the note by S. T. Merrill to his son was a valid gift and the delivery sufficient, cited, besides cases cited in the opinion, Hunter v. Hunter, 19 Barb. 631, 638; Smith v. Vodges', 92 U. S. 183; Patterson v. McKinney, 97 Ill. 41; Merrell v. Johnson, 96 id. 224; Bennett v. Bed-ford Bank, 11 Mass. 421; Pike v. Miles, 23 Wis¡ 164; Phillips v. Woost'er, 36 N. Y. 412. • There was a sufficient consideration to support the promise of S. T. Merrill to pay larger wages to his son. Fycleshimer v. Van Antwerp, 13 Wis. 546-7; Kennedy v. Gotton, 28 Barb. 59-65; I)ay v. Gardner, 42 N. J. Eq. 199; Currie v. Misa, L. E. 10 Exch. 162. The plaintiff, being a subsequent creditor, must show that the conveyance of the land was made with fraudulent intent. Dygert v. Remerschnider, 32 N. Y. 629, 649; Warren v. Moody, 122 U. S.. 132; Adams v. OolUer, id. 382; Metropolitan Hat. Bank v. Rogers, 47 Eéd. Eep. 148. There is no proof that the son was a party to any fraud, or that he had any notice of any fraud or any fraudulent intent on the part of his father. Byrnes v. Olark, 57 Wis. 13; For-lin v. Sook, 30 Kan. 401, 46 Am. Eep. 100; Zoeller v. Riley, 100 N. Y. 102, 53 Am. Eep. 157; Gurry v. Lloyd, 22 Fed. Eep. 258; Howard v. Rynearson, 50 Mich. 307.</p>

<p>APPEAL from tbe Circuit Court for Hock County.</p> <p>Garnishment. The facts are stated in the opinion.</p>

<p>PetitioN for a writ of habeas corpus. The facts are stated in the opinion.</p>

<p> Debtor and creditor: Composition agreement: Subsequent release: Fraud: Fvidence. </p> <p>A composition agreement, dated July 2, between the firm of M., E. & Co. and its creditors, provided that the latter should accept fifty cents on the dollar in cash within ten days “ in full settlement and liquidation ” of their claims, “ the amount of each to be settled and adjusted by’’the receiver of the firm. A release, dated July 20 and signed hy one of the creditors, recites that M., E., and others, compi-ising the firm of M., E. & Co., are in failing circumstances and unable to pay their debts in full, and states that “ in consideration thereof and of the receipt of the sum of money hereinafter named, the undersigned creditor hereby acknowledges receipt from them” of a certain sum (being fifty per cent, of his claim), “ as a full compromise and adjustment of the validity, and in final settlement, satisfaction, and discharge of all claims and demands of the undersigned against said firm and individuals.” In an action by said creditor to recover the balance of his claim, it is held that he may show that his signature to the composition agreement was obtained by false representations and fraud, and that the same were carried forward and operative in procuring, from him the subsequent release.</p>

Action to establish and enforce the lien of a judgment creditor upon an undivided one-third part of the ores and minerals in a certain crevice or range in Grant county. Plaintiff is a judgment creditor of one Jacob Christian lireiser, father of defendant, by judgment rendered in February, 1886.

This action was brought for slander, by a minor of the age of nineteen years, by his guardian ad litem, against the defendant, Rich, a merchant in whose employ the plaintiff was at the time of speaking the words in question, as his clerk.

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>Ejectment in the circuit court to recover a certain lot in the city of Milwaukee. It is conceded that plaintiff is, and for more than thirty-five years last past has been, the owner in fee of the lot, and that defendant was in possession thereof when this action wTas commenced. The contention of defendant is that he so occupied the lot as the tenant of plaintiff, which tenancy had not terminated.</p> <p>The defendant went into possession of the lot in 1864, under a lease from the plaintiff for six years. At the end of the term (1870) another lease for five years was given .by plaintiff to defendant; and in 1875,1880, and 1885, respectively, other leases of the lot were so given, each for a term of five years. Except as to the amount of rent, these five leases were alike. The rent stipulated in the lease of 1885 was $240 per annum, payable (as in all the leases) quarterly on the 1st days of August, November, February, and May,— the lessee to pay all taxes and assessments on the lot. It was stipulated therein that “ if said quarterly payments of rent are paid within three days after they respectively become due, and all taxes and assessments are promptly paid, then the said lessor agrees to accept of $40 per quarter ; otherwise to receive $60 per quarter.” Each lease contained a stipulation for a deduction from the annual rent for prompt payment, similar in form to the above, except the amount of rent and of deductions therefrom varied in the different leases as follows: In the lease of 1864 the annual rent was $100, reduced by prompt payments to $20 per quarter; in the lease of 1870 the annual rent was $200, reduced in like manner to $40 per quarter; in the lease for 1876 the annual rent was $240, reduced on same terms to $50 per quarter; and in the lease of 1880 the annual rent was $200, reduced to $40 per quarter.</p> <p>It seems that defendant owned all the improvements on the lot. A stipulation in each lease gave the plaintiff the option, at the end of the term, to terminate the tenancy by paying the defendant for his improvements, or to renew the lease for a further term of five years. To ascertain and fix the amount of annual rent for such ensuing term it was stipulated in each lease that the lot, exclusive of the improvements, should be appraised by three disinterested men, one to be chosen by each party, and the other by the two thus chosen, and the annual rent should be seven per cent, upon such appraised value, “ to be paid in the manner aforesaid, and subject to all the conditions aforesaid.”</p> <p>Immediately upon the expiration of the lease of 1885,— that is, on May 1, 1890,— the defendant asked plaintiff for an appraisal of the lot under the stipulations for renewal in the lease, to which plaintiff assented, and thereafter three appraisers were chosen in the prescribed manner, and proceeded to consider the matter submitted to them, but were unable to agree on an appraisal. August 7, 1890, two of the appraisers made an award in writing, appraising the lot at $175 per front foot, or $5,250,- — -the lot containing thirty feet front. Plaintiff thereupon made out and tendered to defendant a lease of the lot for five years from May 1,1890, at the annual rental of $367.50, or $91.874-per quarter, with a stipulation to reduce it one third — that is, to $61.25 per quarter — for prompt payment of rent, taxes, and assessments; otherwise the proposed lease contained the same covenants and stipulations as that of 1885. The defendant refused to execute or accept such lease. Thereupon, because the three appraisers did not agree on the appraisal, plaintiff requested defendant to join in a second attempt to procure such appraisal by again choosing appraisers for that purpose. September 2, 1890, defendant refused to comply with the request, but signified that he considered the appraisal already made sufficient, and that he would sign a lease thereunder whenever one drawn up in proper form should be tendered him. By this the defendant meant that such lease should contain a stipulation reducing the annual rental to $40 per quarter for prompt payment. In the mean time, on August 2, 1890, defendant tendered plaintiff $40 for rent of the lot to August 1st, which plaintiff refused to accept.</p> <p>This action was commenced September 5, 1890. The foregoing facts appear from the pleadings, testimony, and findings of the court, which it is unnecessary to state more in detail. The court gave judgment for plaintiff for the recovery of the lot, and for the rents, issues, and profits thereof, assessed at $40 per quarter. Defendant appeals from the judgment.</p>

Tbe complaint charges substantially that on the 16th of August, 1890, the respondent was a locomotive engineer in appellant’s employ, and on that day was ordered to and did act as engineer upon a locomotive drawing a freight train on appellant’s road from a station called Chelsea to Ashland; that on said day the defendant “ negligently, carelessly, and unlawfully caused, suffered, and ■ permitted, at or near a station called (Hidden,” a large freight car to stand and remain…

<p>APPEAL from the Circuit Court for MiboauJcee County.</p> <p>The complaint alleges, in effect, the incorporation of the defendant; that for years prior to December 5, 1887, the plaintiff was employed by the defendant in making general repairs in and about its building where gas was manufactured, and in doing such other work as he was directed to do by the defendant or its general foreman; that previous to December 5, 1887, the plaintiff had been occasionally required to ascend a ladder for the purpose of cleaning out and repairing a condenser, or similar purposes, and that he had declared to said foreman that such ladders were not safe or secure; that the foreman promised to have a different and safe ladder provided for him in case he should be called upon again to do such work; that the plaintiff, not knowing whether he would again be required to do such work at all, and relying upon such promise, continued in the employ of the defendant; that the defendant and said ■ foreman failed and neglected to provide such safe ladder or other suitable appliances; that December 5,1887, the plaintiff was ordered by said foreman to ascend a ladder for the purpose of cleaning out and repairing such condenser; that for said purpose a ladder was furnished by the defendant which was unsafe and unsuitable for the purpose, and especially so by reason of the floor on which said ladder was to be placed being covered to some extent with oil, tar, and other slippery substances, and that said ladder had no spikes in the end thereof which was to rest on said floor, and had no other appliances of any kind to make it reasonably safe or secure; that, in consequence of the failure of the defendant to furnish such suitable ladders and such other and proper facilities that were necessary for the plaintiif in the performance of Ms duties, and while the plaintiff was ascending said ladder on said day, he sustained serious personal injury by the falling of said ladder,' in consequence of which both of his arms were broken, for which he claims damages.</p> <p>To that complaint, dated January 29, 1891, the defendant demurred on the ground that it does not state facts sufficient to constitute a cause of action. From the order overruling that demurrer, the defendant appeals.</p>

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>This action, was brought for the recovery of three lots in the village of Waukesha, and upon a trial by the court the plaintiff had judgment against the defendants for the recovery of two of them only, namely, lots 17 and 18, in block E, and the defendants had judgment for the other. The defendants appeal from that portion of the judgment relating to lots 17 and 18, and insist that upon the pleadings and facts found by the trial court that jddgment ought to have been rendered in their favor as to these two lots, and not against them. There is no bill of exceptions. The question is, simply, What judgment should be given on the pleadings and findings ?</p> <p>It is found by the trial court that on and prior to the 28th day of September, 1858, the defendant BabcocJc was the owner and possessor of the real estate described in the plaintiff’s complaint, and also of the undivided one half of lots 8, 9, 10, and 11, in block 8, in the village of Waukesha; that on that day he, with his wife, mortgaged to the plaintiff duller the two lots in question and the four others above described for the sum of $1,500, but he did not advance or pay to the defendant Babcock any part of that sum, agreeing to pay the same to him from time to time, as he might require or need it; that the plaintiff never did advance or pay any part of it; that, after the execution and delivery of the mortgage to the plaintiff, Babcock sold and conveyed the undivided one-half of lots 8, 9, 10, and 11 to one T. D. Cook, and the consideration therefor was paid to him with the knowledge and consent of the plaintiff; that the defendant afterwards requested the plaintiff to foreclose this mortgage and bid in the property therein described, for the purpose of clearing the title thereto, which the plaintiff agreed to do upon condition that Babcock should pay the costs and expenses of such proceedings; that, in pursuance of said agreement, the plaintiff did foreclose said mortgage, obtaining judgment of foreclosure on the 14th of September, 1860; that, after judgment of foreclosure was obtained, and in pursuance of said agreement, the plaintiff bid in all said property at the sale under the judgment, and, as a part of said contract to so foreclose said mortgage and bid in the property, he agreed that he would convey to said Cook lots 8, 9, 10, and 11, part of the property mentioned and described in the mortgage, at any time that it was desired, and that he would reconvey to the defendant Babcock lots 17 and 18 whenever requested so to do, and that, in reliance upon said promise, the defendant Babcock permitted the plaintiff to bid in said real estate on the foreclosure sale and take the title thereto in his own name, and the sheriff’s deed on such sale was issued to the plaintiff; that thereafter the plaintiff did convey as he had agreed, to said Cook, lots 8, 9, 10, and 11, but did not convey the other two lots, namely 17 and 18, either to the-defendant Babcock or to any other person for him; that the defendant Babcock has been in the continued and uninterrupted possession of said lots, under claim of title thereto, since the year 1860, and prior to the commencement of this action demanded of the plaintiff that he convey them • to him according to the agreement, which he refused to do. It is further found that the mortgage so given by Babcock and wife to Outler was without consideration; that it was foreclosed for the benefit of the defendant Babcock for the sole purpose of clearing the title to said real estate, and the title thereto was taken by him under a verbal agreement to recowoey it to the defendant Babcoch or such persons as he might designate, which agreement plaintiff afterwards refused to carry out so far as lots 17 and 18 are concerned.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>The defendant corporation is the publisher of the Mil-waulcee Sentinel, and in the issue thereof of December 21, 1890,' it published an article of and concerning the plaintiff corporation, which the latter charges is libelous. Thereupon the plaintiff commenced this action in the circuit court on January 3,1891, by the service of a summons on the defendant. On February 2, 1891, the complaint therein was also served on the defendant. It charges that the defendant falsely, wickedly, and maliciously did compose and publish said article, to the great damage and injury of the plaintiff. It is also charged therein that the publication of the article destroyed the reputation of the plaintiff as a solvent insurance company, and forced it into insolvency. Judgment for $25,000 is demanded. No other cause of action is stated in the complaint.</p> <p>Intermediate the service of the summons and of the complaint, an action was brought in the superior court of Milwaukee county against the plaintiff corporation, by a creditor thereof, to wind up its affairs. The complaint therein alleged the insolvency of the company, and prayed for an injunction and receiver. The company answered, admitting its insolvency as alleged. Thereupon, on January 8,</p> <p>1891, the court made an order adjudging the corporation insolvent, appointing a receiver of its property and assets, and enjoining and restraining it, among other things, from exercising any of its corporate rights, privileges, or franchises.</p> <p>On February 4-, 1891, the defendant moved the court for an order in the present action, striking out the complaint, or for a stay of all proceedings in the action until the receiver should be properly substituted as plaintiff in the action, or for such further or other relief as the defendant may be entitled to. On the hearing of the motion the facts above stated were made to appear. The court denied the motion, and the defendant appeals from the order denying the same.</p> <p>To the point that in a proceeding against a moneyed or insurance corporation under the special provisions of law for such corporations, the order for an injunction and the appointment of a receiver with full powers constitute a virtual dissolution of the corporation and, as a consequence, it cannot sue, they cited Verplan.ck v. Mercantile Ins. Go. 2 Paige, 438, 452; Bank Comm'rs v. Bank of Buffalo, 6 id. 497, 503; Dmenport v. Oity Bank, 9 id. 13; Taknadge v. Pell, id. 410, 413, 414.</p> <p>They contended, inter alia, that the gravamen of the action is injury to property, as distinguished from personal injury, and therefore the cause of action passes to the receiver. Weller v. Quaw, 46 Wis. 118; Hudson v. Piets,' 11 Paige, 180; Beach, Eeceivers, sec. 663. The receiver has a right to continue the prosecution of the action in the name of the corporation.' Phoenix W. Go. v. Badger, 67 N. Y. 294; Glewoiüe W. Co. v. Ripley, 43 id. 206; Gluck & Becker, Eeceivers, 23, sec. 7. Ilis appointment did not abate the cause of action. Toledo, W. <& W. R. Go. v. Beggs, 85 Ill. 80, 82. The insolvency of the plaintiff corporation and appointment of the receiver did not dissolve the corporation so that it could not sue and be sued. E. S. sec. 1764; Gluck & Becker, Eeceivers, 26, 27, sec. 7; Kincaid v. Bwinnelle, 59 N. Y. 548; Beach, Eeceivers, secs. 406, 412. The injunction was not intended to and did not prevent the prosecution of this suit commenced before the appointment of the receiver. Hudson v. Piets, 11 Paige, 180; Pa/rker v. Wakeman, 10 id. 485. The defendant herein, being in no way a party to the action in which the injunction was issued, has no right to say that this action shall stop on that account.</p>

<p>APPEAL from the Superior Court of Milwcmkee County.</p> <p>Action upon a bond executed by policy-holders of a mutual insurance company for the purpose of establishing a guaranty fund. The facts are stated in the opinion. The defendants appeal from an order overruling a demurrer to the complaint.</p> <p>argued, among other things, that the insurance company had no power to create or accept the fund established by the bond in suit. The statute (secs. 1909-1915, E. S.) expressly provides how such a fund may be created, what it is, and how it may be used. But the fund in question was not created under or in accordance with the statute, and hence is unauthorized and invalid. Secs. 1941<z-1941y, S. & B. Ann. Stats., point out just what the capital of this kind of a company must consist of. And tbis attempt to add to that capital is invalid because not authorized by statute. A corporation takes the rights and powers conferred upon it by statute, and can claim no right and do no act not authorized by statute, “ not even as a means of raising funds to accomplish things authorized.” Dietrich v. Madison B. Asso. 45 Wis. 79-84; Jemison v. Citizens' S. Ba/nik, 122 N. Y. 135, 140; Bank of Augusta v. Ernie, 13 Pet. 588; National Trust Co. v. Miller, 33 N. J. Eq. 155-162; Bochester Ins. Co. v. Martin, 13 Minn. 59. This company, organized under sec. 1941a, S. & B. Ann. Stats., was authorized to insure upon the mutual plan only. The mutual plan means the mutual liability of every member of the company to contribute his share for losses and expenses. Bundle v. Kennan, 79 Wis. 492. But the taking of this guarantee bond, if permissible, converts the company into something else than a mutual insurance company. See State v._Mon-itor F. Asso. 42 Ohio St. 556-564; Comm. v. Mass. Mut. F. Ins. Co. 119 Mass. 45-50; Warner v. Schoharie & S. Counties Farmers' Mut. F. Ins. Co. 15 N. Y. Supp. 632.</p> <p>If it be said that persons have insured with this company relying upon this guaranty fund, the answer is that they were bound to know what the corporation could and could .not legally do, and they have no right to rely upon what they know was illegal. “A person who enters into a contract with a corporation is bound at his peril to take notice of all the legal limitations of its capacity.” Davis v. O. C. B. Co. 131 Mass. 259; Alexander v. Cauldwell, 83 N. Y. 480; Franklin Co. v. Lewiston S. Bank, 68 Me. 43; De Bost v. Albert Palmer Co. 35 Hun, 386; Bice v. Peninsular Club, 52 Mich. 87; Beach, Corp. § 383. And it is especially true that every person who insures in a mutual insurance company is bound to know the laws and rules which govern it and fix the liability of its members, and is bound to know the statute under which it is organized, and bound to know that the essential element in the case is mutual liability. Pfister v. Gerwig, 122 Ind. 561; Miller v. Hillsborough Mut. F. .á&s. Asso. 42 N. J. Eq. 459; Am. Ins. Go. v. Stoy, 41 Mich. 385; HieKl v. Adams Go. Mut. Ins. Go. 58 Pa. St. 444; Goles v. Iowa State Mut. Ins. Go. 18 Iowa, 426; Satterthwaite v. Mut. Ben. Ins. Asso. 14 Pa. St. 393; Lattomus v. Farmers’ Mut. F. Ins. Go. 3 Houst. 404; Fuller v. Madison Mut. Ins. Go. 36 Wis. 599. In a mutual insurance company every policy-holder becomes a member of the company, and is bound by the acts of the officers of the company. Their acts are his acts. Koehler v. Beeber, 122 Pa. St. 291; Am. Ins. Go. v. Stoy, 41 Mich. 385, 395. And see Trenton M. I. dé F. Ins. Go. v. McKelway, 12 N. J. Eq. 133; National Trust Go. v. Miller, 33 id. 155, 160, 162; Morris dé F. B. Go. v. Sussex,B. Go. 20 id. 542, 564; Lucas v. White Line Tra/nsf. Go. "70 Iowa, 541.</p> <p>A party to an illegal-contract is not prevented from setting up the illegality. The law simply leaves the parties to an illegal contract where they put themselves. Tylee 'v. Yates, 3 Barb. 222, 228; National Trust Go. v. Miller, 33 N. J. Eq. 155, 160; Safford v. Wyckojfi, 1 Hill, 11; Swift v. Beers, 3 Denio, 70; Nourse v. Pope, 13 Allen, 87;' State v. Monitor F. Asso. 42 Ohio St. 555; Workmen's Bcmking Go. v. Bautenberg, 103 Ill. 460; 'State v. Bartlett, 30 Miss. 624; Port. Ins. 370; Tracy v. Talmage, 14 N. T. 162.</p> <p>See, also, Mutual Ben. L. Ins. Go. v. Davis, 12 N. Y. 569, 573; North Biver Ins. Go. v. Lcmrence, 3 Wend. 482; Beach v. Fulton Bank, id. 573; Farmers’ dé M. Ba/nk v. Baldwi/n, 23 Minn. 198; New York T. dé L. Go. v. Hehner, 12 Hun, 35; Montgomery v. M. dé W. P. B. Go. 31 Ala. 76; Fa/rm-ers’ dé T. Bank v. Harrison, 57 Mo. 503, 511; Chicago Building Soc. v. Crowell, 65 Ill. 458; Bissell v. M. 8. dé N. 1. B. Go. 22 N. Y. 285.</p> <p>(1) The act of the directors in accepting the bond and placing it in the treasury as part of the assets of the company was not ultra vires, and the bond is not void, but creates an obligation as against tbe defendants. A corporation “ may adopt any proper and convenient means tending directly to accomplish the ends and purposes of the company, which do not amount to the transaction of a separate, unauthorized business.” Madison, W. c& M. P. B. Go. v. W. & P. P. B. Go. 5 Wis. 173; Ola/rk v. Farrington, 11 id. 306; Blunt v. Walker, id. 334; Farmers1 & M. Bank V: D. da M. B. Go. 17 Wis. 372; Germantown F. M. Ins. Co. v. Phei/n, 43 Wis. 421; Book Biver Bank v. Sherwood, 10 Wis: 230. And see Salt Lake Oity v. Hollister, 118 U. S. 256; Penn. B. Go. v. Keokuk da H. Bridge Go. 131 U. S. 371. As to the rule or policy which ought to govern the court in dealing with such questions when the rights of third parties are involved, see Sawyer v. Hoag, 17 Wall. 610. .And for evidence of the modern tendency to enlarge rather than restrict the power of corporations, see Cook, Stocks (2d ed.), ch. 12. (2) When an act is done which, although not authorized in terms, is nevertheless within the limits of means fairly auxiliary to the objects of the corporation, and not in violation of public policy, the corporation cannot escape its moral or business obligations by the plea of ult/ra vi/res. Book Bi/oer Bank v. Sherwood, 10 Wis. 230; Bissell v. M. S. ds H. I. B. Go. 22 N. Y. 262; Whit/ney Arms Go. v. Barlow, 63 N. Y. 63; LesUe v. Lorillard, 110 N. Y. 519; In re Miller, 1 Pa. St. 326; Farnsworth v. Bobbins, 36 Minn. 369; Oomm. v. Ma/nu-fadrar erd M. F. Ins. Go. 11 Phila. 552; Moss v. Bossie Lead M. Go. 5 Hill, 140; Chicago Build. Soc. v. Crowell, 65 Ill. 459; Willma/rthv. Gra/ioford, 10 Wend. 342; Sanger v. Tffton, 91 U. S. 56; Pay son v. Withers, 5 Biss. 279; Mott 'v. U. S. Trust Go. 19 Barb. 568; Bailway Co. v. McCarthy, 96 U. S.’ 267; Matt v. Boman Gath. Mut. Prot. Soc. 70 Iowa, 455; Oil Greek <& A. B. B. Go. v. Pennsylvania Trcmsjg. Go. 83 Pa. St. 160; Chicago c& Atl. B. Go. v. Perkes, 103 Ind. 520; Beach, Priv. Corp. §§ 421, 422. (3) In Waldo v. C'., St. P. <& F. du L. P. Oó. 14 Wis. 575, the question was raised whether a grantor of lands to a corporation, under a contract which the corporation has no authorhy to enter into, can reclaim the lands on the ground that the grantee could not take title, or whether the title is defeasible only by the state; citing some cases in which the latter view was taken. This question has since received further consideration, and it would appear that the law of those cases has been very generally accepted. Gowell v. Springs Go. 100 U. S. 60; Nat. Panic v. Matthews, 98 U. S. 628; Natoma W. dfc M. Go. v. Glarkin, 14 Cal. 552; Hayward v. Davidson, 41 Ind. 214; Parnés v. Suddard, 117 Ill. 237; De Gamp v. Dobbins, 29 N. J. Eq. 36; Paker v. Neff, 73 Ind. 68; Gilbert v. Hole, (S. D.), 49 N.W. Rep. 1. Under the doctrine of these authorities the power of the corporation to take such a bond becomes immaterial in an action, like this, to enforce the bond. (4) The defendants are estopped from claiming that the bond was void for want of consideration, or any kindred defense. The fact of the making of this bond was advertised to the public as the basis of business between the company and its patrons, and the business of the company was thereafter prosecuted on the strength of such bond, as just so much cash capital in the treasury of the company. (5) If a consideration is required beyond that implied in the use of the seal, there is ample ground for claiming a consideration in the interest which defendants had in the success of the company. (6) The agreement laid upon each of the defendants an obligation to pay in, as the call should be made, necessary sums (not exceeding the subscription) to pay the losses and expenses of the company. The promise •is predicated upon the purpose to establish a guaranty fund, and runs to the said company, and seems to be ruled by the following cases: Salem Mill-Dam Gorp. v. Popes, 6 Pick. 23; South Pay Meadow Dam Go. v. Gray, 30 Me. 547; Duchess Gotton Manufactory v. Dams, 14 J ohns. 238; Toxmv-send v. Goewey, 19 Wend. 424; Gontoocook Val. R. Go. v. Barker, 32 N. H. 369; Gibbons v. Griisel, 79 Wis. 365; White v. Haight, 16 N. Y. 310. (7) Tbe fact that tbe directors failed to make tbe call is wholly immaterial. Cook, Stocks, § 108, and note 1; White v. Haight, 16 N. Y. 324, and cases cited. (8) Tbe defendants might have been sued severally in an action at law. But tbe receiver was appointed by tbe court sitting as a court of equity, and the entire proceedings are in that forum. The question whether an action should or could have been brought before the liability of the defendants should be adjudged, could not be raised in a simple action of assumpsit on the agreement, and as any appropriate judgment may be rendered in equity the question is of little importance. Leonard v. Rogan, 20 Wis. 542; Murtha v. Gurley, 90 N. Y. 372. TJnder all the circumstances of the case it was proper and the better practice to go into a court of equity. Hatch v. Dana, 101 U. S. 205; New York da M. II. R. Go. v. Schuyler, 17 N. Y. 592; Pfohl v. Simpson, 74 N. Y. 137; Geery v. N. Y. da L. S. S. Go. 12 Abb. Pr. 268; Mamm, u. Rents, 3 N. Y. 415; Matter of Umpire Gity Bank, 18 N. Y. 210; Kiibourn v. Sun-derland, 130 U. S. 514.</p> <p>In reply, appellants’ counsel argued, among other things, that the question is not whether this company might hold title to property conveyed to it as a gift, but whether it can enforce an executory agreement, the effect of which is to relieve its members from their statutory liability. There is a manifest difference between executory and executed contracts. Land v. Goffmcm, 50 Mo. 243; Shewalter v. Rir-ner, 55 id. 218; Matthews v. Skinker, 62 id. 329; S. F. Gas Go. v. San Fraaicisco, 9 Cal. 453; Nassau Bank v. Jones, 95 N. Y. 115; Argenti v. San Francisco, 16 Cal. 255; Bradley v. Ballard, 55 Ill. 417., This distinction has not always been preserved; but there bas been no deviation from it, except to bold in some eases that even an executed ultra vires contract is void for. every purpose. Zottman v. Sam, Francisco, 20 Cal. 96. Tbe doctrine of estoppel does not apply. Penn., Del. cé Md. 8. Nav. Go. v. Dandridge, 8 Gill & J. 248; Frcmldi/n Go. v. Lewiston Sav. Panic, 68 Me. 43; Centred Tra/nsp. Go4 v. Pullmans’ P. G. Go. 139 U. S. 24-54; Parish v. Wheeler, 22 N. T. 508; Hood v. N. Y. <& N. II. P. Go. 22 Conn. 502; Memphis v. Memphis Gay oso Gas Go. 9 Heisk. 543; Downing v. Mt. Wash. Road Go. 40 N. II. 230; Hays v. Galion G. I. dc 0. Go. 29 Ohio St. 340 ; Ghewacla Lime Worlcs v. Disnwlces, 81 Ala. 344; Thompson v. Lambert, 44 Iowa, 248; Mallory v. Hanaur Oil Worlcs, 86 Tenn. 598; Wright v. Hughes, 119 Ind. 329; Llolt v. Win-field Banlc, 25 Fed. Rep. 812; Scoville v. Thcnjer, 105 IJ. S 143, 151. Sec. 1941<?, R. S., provides that when a loss occurs which requires an assessment, “ the president and the officers of the corporation shall make an assessment sufficient to pay such loss, upon all the property insured.” This is the method pointed out to pay losses, and expressio unius est exclusio alteri/as applies. Matthews v. STcbnlcer, 62 Mo. 329; Thomas v. Railway Go. 101 U. S. 71; Oroclcer v. Whitney, 71 N. T. 161. This principle is especially applied when the question arises between the members of a mutual insurance company,'because “its constituent members are charged with full knowledge of the want of power in the corporation to make the particular contract.” Roclchold v. Gamton M. M. B. Asso. (Ill. Sup.), 19 N. E. Rep. 710.</p>

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>This action is to recover damages sustained by the plaintiff while traveling upon the sidewalk described in the defendant city, January 31, 1890, by reason of the negligence of the defendant in allowing such sidewalk to become defective and unsafe. The answer is, in effect, a general denial. At the close of the trial the jury returned a special verdict to the effect (1) that the plaintiff was not guilty of any want of ordinary care and prudence that contributed to the injury ; (2) that the defendant was guilty of negligence that caused the injury to the plaintiff; (3) that such negligence consisted in allowing the sidewalk to remain in a sloping condition, and snow and ice to accumulate and remain thereon; (4) that such negligence or defect had existed for such a length of time that the city authorities ought to have known thereof; (5) that they assessed the plaintiff’s damages at $1,500. The court thereupon ordered judgment in favor of the plaintiff and against the defendant for the amount of such damages and costs. Prom the judgment entered accordingly the defendant appeals.</p>

<p> (1, 2) Gifts: Evidence: Appeal: Immaterial error. (S) Interest on un-liquidated claim. </p> <p>1. A finding of the trial court that certain articles were delivered as gifts and not as payments on a contract, is held to be sustained by the evidence.</p> <p>2. In an action tried by the court the admission of incompetent evidence will not work a reversal where there is ample competent evidence to sustain the findings.</p> <p>3. Upon an unliquidated claim for services rendered, interest does not begin to run until a demand is made.</p>

<p> Sale of chattels: Warranty: Special verdict: Appeal. </p> <p>1. The vendee of a steam-boiler having examined it when it was tested, and having refused to take it under the written contract under which it had been manufactured for him, the rule of caveat emptor applies to his subsequent purchase and admits no exception by implied warranty.</p> <p>2. But a statement of the vendor, relied upon by the vendee in making the purchase, that the boiler was fit and suitable for a purpose other than that for which it was made, was an express warranty.</p> <p>3. In an action for breach of warranty by the breaking of a boiler, there being no finding in the special verdict that the breaking was the result of any defect covered by the warranty, a judgment for the defendant on the verdict cannot be held erroneous, where there is no bill of exceptions making the evidence a part of record.</p>

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>This is an appeal by the defendant railway company from an order overruling its demurrer to the complaint. The only ground of demurrer alleged is that two causes of action are improperly united. The complaint states two causes of action in separate counts. The first count charges that the railroad company neglected to fence its railroad at a certain point, by reason whereof an ox of the plaintiff strayed upon the railroad track and was run over and killed by a passing train. The other count charges that plaintiff delivered a number of horses to defendant at one point to be transported to another point on its line, and paid the regular freight thereon to defendant, to wit, §38.72, in consideration whereof the defendant agreed to transport the horses safely and securely to their destination. The count then charges that defendant, not regarding its duty as a common carrier, did not safely and securely convey the horses and deliver the same to ■ plaintiff at the designated point, but, on the contrary, “ the said defendant, its agents and servants, so carelessly and negligently behaved and conducted themselves in the premises that by and through the carelessness, negligence, and default of said defendant, its agents and servants in the premises,” the horses were injured, and one of- them killed, to the damage of plaintiff $300, which he claims, besides $50 for expenses in unloading, keeping, and treating the horses, made necessary by the rough, careless, and negligent management by defendant’s servants of the cars containing them. The plaintiff demands judgment for a specific sum. A computation shows that such sum includes the freight on the horses.</p>

<p>APPEAL from tbe Circuit Court for Winnebago County.</p> <p>Action to recover damages for personal injuries alleged to ha-ve been caused by the negligence of the defendant. The facts are stated in the opinion. The plaintiff appeals from a judgment of nonsuit.</p> <p>to the point that the question of defendant’s negligence was for the jury, cited Spensley v. Lancashire Ins. Go. 54 Wis. 438; Atkinson v. Goodrich Transp. Go. 60 id. 141; Milw. ds St. P. P. Go. v. Kellogg, 94 U. S. 469; Kellogg v. O. ds K. W. P. Go. 26 Wis. 223; 16 Am. & Eng. Ency. of Law, 436, and eases cited in note 3; Id. 444; SJmmaker v. St. P. ds D. P. Go. 46 Minn. 39; Gibbons v. Wis. Val. P. Go. 58 Wis. 335, 342; Sioux Oity d> P. P. Go. v. Stout, 17 Wall. 745; Kopies v. Orth, 61 Wis. 533; Jucker v. G. d¡ N. W. P. Go. 52 id. 152; Garter v. Towne, 98 Mass. 567; Bi/rge v. Gardiner, 19 Conn. 507; Lowery v. Ma/nhattcun P. Go. 99 N. Y. 158; Lane v. Atlantic Works, 111 Mass. 136; Bvnford v. Johnston, 82 Ind. 426; Kerr v. Forgue, 54 Ill. 482; Powers v. Harlow, 53 Mich. 507; Hagel v. Mo. Pac. P. Go. 75 Mo. 653; Keffe v. M. ds St. P. P. Go. 21 Minn. 207; Gulf, O. ds S. F. P. Go. is. Styron, 66 Tex. 421; Powell is. Beveney, 3 Cush. 300; Dixon is. Bell, 5 Maulé & S. 198; Bobhnson v. Cone, 22 Yt. 214; Insurance Co. v. Tweed, 1 Wall. 44; Bridger v. A. db 8. B. Co. 25 S. C. 24; Ferguson v. C. & B. B. Co. 75 Ga. 637; 77 id. 1C©; Kansas Cent. B. Co. v. Fitzsimmons, 22 Kan. 686; Daley v. N. db W. B. Co. 26 Conn. 591; Koons v. St. L. db I. M. B. Co. 65 Mo. 592; Lynch v. Nurdin, 1 Q. B. 29; Whirley v. Whiteman, 1 Head, 610; Hill v. P. db B. B. Go. 55 Me. 438; Bailey v. N. H. db N. Co. 107 Mass. 496; Brycmt v. C. V. B. Co. 56 Yt. 710; Hibler v. McCartney, 31 Ala. 501; Grand Trunk B. Co. v. Bichardson, 91 U. S. 454; Wharton, Neg. secs. 85, 853, 92; Green Bidge B. Co. v. Brinkman, 23 Am. & Eng. R. Cas. 342; Shearm. & Redf. Neg. secs. 686, 688, 739; Miller v. Pendleton, 8 Gray, 547; Conhlin v. Thompson, 29 Barb. 218; Hill v. Charlotte, 72 N. C. 55; Mullins v. BlaAse, 37 La. Ann. 92; Moebus v. Becker, 46 N. J. Law, 41; Ireland v. O., H. <& 8. P. B. Co. 13 N. Y. 526; Townley v. C., M. db St. P. B. Co. 53 Wis. 632; Hill v. Fond du Lac, 56 id. 246; Nelson v. C., M. c& St. P. B. Co. 60 id. 324; Dodge v. Bank of Ky. 2 A. K. Marsh. 616; Baltimore C. P. B. Co. v. Kemp, 61 Md. 74; Terre Haute db 1. B. Co. v. Buck, 96 Ind. 346; Salmon v. D., L. <& W. B. Co. 38 N. J. Law, 5; Ala. G. S. B._ Co. v. Chapmcm, 80 Ala. 615; Ehrgott v. Ma/yor, 96 N. Y. 264, 280; Harrimam, v. Bailwa/y Co. 45 Ohio St. 11; Bransom’s Adm'r v. Labrot, 81 Ky. 638; Kolsti v. M. dc St. L. B. Co. 32 Minn. 133; Atchison <& N. B. Co. v. Bailey, 11 Neb. 332.</p> <p>To the point that where the facts are undisputed and there is no reasonable chance for drawing different conclusions from them, the question of negligence becomes one of law for the court, they cited Elmore v. Hill, 51 Wis. 365; Delaney v. M. ds St. P. B. Co. 33 id. 67; Gagg v. Vetter, 41 Ind. 228; Greenleaf v. Lll. Cent. B. Co. 29 Iowa, 14; Abbett v. C., M. da St. P. R. Oo. 30 Minn. 482; Donaldson v. M. da St. P. R. Go. 21 id. 293; Fletcher v. A. da P. R. Oo. 64 Mo. 484; Gal-laban v. Warns, 40 id. 131; Oenhral R. Oo. v. Moore, 24 N. J. Law, 824; Gonzales v. FT. Y. da H. R. Co. 38 N. Y. 440; Filer v. Fr. Y. O. R. Oo. 49 id. 4T; Ranch v. Lloyd, 31 Pa. St. 358; Westchester da P. R. Go. v. McFlwee, 67 id. 311; Pittsburgh, Ft. W. da O. R. Oo. v. Evans, 53 id. 250; Banlec v. FT. Y. & PL. R. Go. 59 N. Y. 356; Shearm. & Eedf. Neg. sec. 11.</p>

It appears from the record that June 19, 1885, a judgment of divorce was rendered in favor of the plaintiff, and against Walter Kempster, wherein and whereby the said Walter Kempster was adjudged to pay to the plaintiff out of his estate, as alimony, for her personal support and maintenance, the sum of $1,000 annually, in quarterly in-stalments, one fourth in advance on the 19th days of June, September, December, and March of each year during her natural life, if she…

The case is stated in the opinion. They contended, inter alia, that where fraud is the foundation of the action, the statute of limitations does not begin to run, in the absence of negligence or laches of the plaintiff, until the discovery of the fraud. The weight of authority is in favor of the application of the rule to actions at law as well as to suits in equity.

This action was brought to foreclose a mortgage against Mary Bannister, the plaintiff’s mother, 'Nathaniel Phelps, a judgment creditor of said Mary, and F. A. Putnam, receiver of the property, etc., of Mary Bannister, appointed in proceedings supplementary to execution on a judgment against her in favor of the defendant Phelps, in the circuit court for Eond du Lac county, for about $300, rendered a few days after the execution and recording of the mortgage in question, which…

Truman A. Root, late of Fond du Lac county, died seised of -a farm in that county, of a parcel of land in the city of Fond du Lac, on which were two dwelling-houses (one of which was his homestead), and of some personal property.

The facts are stated in the opinion. For the appellant it was contended, inter alia, that the plaintiff liosa Lamaeh is not a necessary or proper party to the action. The complaint states generally that on October 30, 1890, the plaintiffs were seised of the premises, but it makes a specific allegation which, if true, shows the title in the plaintiff Ramash to the exclusion of Rosa La/tn-ach. General allegations are of no avail when inconsistent with facts specially averred.

This is an action of ejectment commenced in April, 1889. The complaint is in the usual form. The defendants claim title under tax deeds, fair on their face, issued to them by the state and Marathon county August 28, 1878, and recorded on that day, for the taxes of 1873 and the sale of 1874. The plaintiff claims title under the following facts and conveyances, to wit: Frank C. Begole entered the lands and obtained the title thereto prior to 1873.

EEEOE to the Municipal Court of Milwaukee County. Plaintiff was convicted in the municipal court of Milwaukee county, in May, 1891, of felonious assault on one Strell-man, being armed with a dangerous weapon, to wit, a revolver. He sued out a writ of error upon grounds sufficiently stated in the opinion. Eor the defendant in error there was a brief by the Attorney General and J. M. Qlamcey, Assistant Attorney General, and oral argument by the Attorney General.

This action was brought by Ourtiss M. 'Treat and Melvin A. Hoyt against George Miles to recover damages for the breach of an alleged contract between the parties to open and work a certain stone quarry on joint account. The case was here in 1887, on an appeal from an order sustaining a general demurrer to the complaint, and is reported in 68 Wis. 344.

Replevin for a quantity of lumber. Prior to October 10, 1888, the lumber was owned by one Lane, a citizen of Michigan, who on that day executed an assignment in Michigan, for the benefit of his creditors, to one Clark, who accepted the trust. Said assignment was fully perfected under the laws of Michigan, October 19,1888, by the filing of the same in the proper office, with list of creditors, inventory of property, and an approved bond.

This action was brought under sec. 2350, E. S., to annul a marriage of the parties, upon the ground that the plaintiff (the husband) was under eighteen years of age when the same was solemnized. The case was here on a former appeal, which was from an order of the superior court of Milwaukee overruling a general demurrer to* the complaint, and such order was affirmed. The averments of the complaint are sufficiently stated in the report of the case on that appeal. 1J Wis. 634.

The complaint states that on the 16th day of January, 18'IT, Ira Mead and Charles Bolles owned in fee lot 2, in section 18, township 21,… Held: enjoyed, and used in and upon said strip of land eight rods wide, and not otherwise; the westerly boundary line of said strip of land to be eight rods from and parallel to the Chippewa river at high-water mark. “ Provided, however, and these presents are upon these express conditions and reservations following, to wit: That the…

This action was brought by the plaintiffs against the city for the alleged wrongful cutting down and removing of five ornamental shade trees which were standing and growing upon their premises, on the west side of Oregon street in said city, inside of the street line of the sidewalk and nest to the carriage-way.

The defendant Russell, who is the principal debtor, contracted with Richland county, in April, 1889, to build for it a court house at a stipulated price. The contract provided for monthly estimates and payments as the work progressed, and that the county should retain twenty per cent, of such estimates as security for the ultimate performance of the contract by Russell.

This action was commenced April 5,1890, to restrain tbe collection of an assessment for tbe construction of a sewer and pavement on tbe street in front of tbe plaintiff’s lots, and to set aside tbe same as null and void.

. This action was brought by the plaintiff, as administrator of Greenberry Thompson, to recover against the defendant company for a loss sustained by the plaintiff’s intestate under a policy of insurance issued May 6, 1884, by the defendant company, whereby it insured said Thompson to the amount of $2,000, distributed as follows: $200 on his dwelling-house; $150 on his household furniture; $25 on wearing apparel; $50 on his cabinet organ, while contained therein; $300 on his…

Replevin to recover a frame dwelling-house, sixteen by twenty feet in size, standing upon blocks upon appellant’s land. The house was built by one Rudd while in possession of the premises as tenant of Anderson. When Rudd left the premises he sold the house- to Fitzgerald,, who sublet the house to one Eastman. Afterwards Fitzgerald, prepared to move the house off from appellant’s land, and appellant stopped the removal, whereupon this action was brought by Fitzgerald.

The facts are sufficiently stated in the opinion. They contended that the transaction amounted to 'an equitable assignment, in favor of the appellants, of the proceeds of the corn sold. East Lewislury L. & M. Oo. v. Marsh, 91 Pa. St. 96; MoLellan v. Walker, .26 Me. 114; Oalclwell v. Hartujpee, 70 Pa. St. 74; Kingman v. Perkins, 105 Mass. Ill; Fairbanks v. Sargent, 117 N. Y. 320; Newby v. Kill, 2 Met. (Ely.), 530; Story, Eq.

This action is to recover damages for personal injuries which the plaintiff allege^ he received by reason of the insufficiency or want of repair of Washington street, one of the public streets or highways in the defendant city. Due service of notice of the injury, the place where it occurred, and the claim, for damages, as required by. sec. 1339, R. S., is alleged in the complaint. The answer is substantially a general denial.

Action for slander. Tbe facts are sufficiently stated in tbe opinion. There was a verdict in favor of tbe plaintiff, assessing bis damages at $1,500, and from tbe judgment thereon the defendant appealed.

This is an action for negligently killing the plaintiff’s intestate, January 17, 1890, about 10 o’clock in the forenoon, at the point where the railway then operated by the defendant crossed the new Pond du Lac road in section 23 in the town of Germantown in the county of Washington.

This action was brought injustice’s court by the plaintiff, an infant of the age of fourteen-years, by his next friend, against the defendant, for assault and battery, and he recovered $20 damages and $30.76 costs. The defendant appealed to the superior court of Milwaukee county, and in the notice of appeal entitled the case, Joseph Friemark v. Fdioard If.

This action is upon a policy of insurance. It came to this court on a former appeal from a judgment of nonsuit. The judgment was reversed, and the cause remanded for a new trial. 77 Wis. 87. The cause has been again tried in the circuit court, a verdict for defendant directed, and judgment entered thereon against tbe plaintiff. The plaintiff appeals from such judgment.

Action, to recover an unpaid balance for services rendered by plaintiff as an attorney at law and for bis disbursements. The facts are sufficiently stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.

This action is to Restrain the defendants and their associates from withholding from the plaintiffs and their associates the use, occupation, and enjoyment of the church property described, on the… Held: and as a result a committee of three from each side was elected to negotiate upon some agreement, and the meeting thereupon adjourned to October 31, 1887. 12.

Action for trespass alleged to have been committed by the defendants in tearing down a fence erected by the plaintiff. The defendants answered, among other things, that the locus in quo was a public highway and the fence an obstruction thereof. The facts are stated in the opinion. The plaintiff appeals from a judgment of nonsuit.

This is an appeal from an order appointing commissioners to assess damages for taking lands for right of way, and was made upon an amended petition of the railroad company, the original petition not being before this court. The amended petition was signed by George P. Knowles, as attorney for the railroad company, and was properly verified by him.

The plaintiff is a corporation and manufacturer of machinery at Canton, Ohio, and for several years before the commencement of this action the defendants were the agents of the plaintiff at Boscobel in this state for the sale-of agricultural machinery. This action is to recover of defendants a balance of $313.87, alleged to be due plaintiff on account of moneys received by defendants for machinery sold by them.

<p>APPEAL from the Circuit Court for Oneida County.</p> <p>Action to recover damages for alleged defects and in-sufficiencies in a furnace sold by appellant to respondents in the fall of 1885, and put into respondents’ store building in Merrill, with necessary pipes and registers. The appellant’s proposal, which was accepted by respondents and forms the contract of sale, contained the following clause: “ Should this proposal be accepted, and the terms of payment be fully complied with, we will guaranty the said furnace to work satisfactorily (if properly used); otherwise, we will substitute a size that will do the work, or we will remove said furnace and refund the amount paid for same, as may be agreed.” The purchase price of the furnace was $242.50, which was fully paid on or about April 1, 1886. Numerous defects in construction and material were set forth in the complaint, by which it was alleged that the furnace was worthless; that the building had been damaged by smoke, and large expenses incurred for repairs; and the damages were laid at $400. The answer, admitting the sale of the furnace, alleges that the plaintiffs failed to erect a proper chimney, and for that reason the furnace smoked, and that the plaintiffs broke and injured it by careless and improper use.</p> <p>Upon the trial it appeared that the furnace was used for four, winters to heat the building, beginning in the fall of 1885; that complaints were made of its smoking early in 1886; that a crack appeared in the top in 1887, and that in July or August, 1887, the plaintiffs asked the' defendant to take it out and put in a new furnace, which defendant refused to do, claiming that the crack was caused by improper usage; that afterwards plaintiffs repaired the furnace from time to time, and continued to use it till the summer of 1889, when they made'another demand that a new furnace be put in, and afterwards commenced this action. Much conflicting evidence was given as to the working of the furnace and the causes, of the alleged defects and in-sufficiencies, which is not necessary to be stated.j The jury found a verdict for plaintiffs for $242.50, with interest from March 30, 1886, and from judgment thereon defendant appeals.</p>

<p> Sp/ecial verdict: Inconsistent findings: Refusal to receive: Appealable order. </p> <p>, 1. In an action against a town for personal injuries caused by a defective highway; the jury found specially that the highway was out of repair; that the plaintiff did not suffer any injuries by reason of the alleged negligence of the defendant; that the defendant had nJo notice, either actual or constructive, of the defect before the accident happened; that the defect occurred after sunset on the night of the accident; that the plaintiff was injured by reason of said defect ; and that the plaintiff has sustained no damages by such injury. Held, that upon this verdict the defendant would be entitled to judgment. The inconsistency of the last two findings was immaterial, and it was error for the trial court to refuse to receive the verdict and enter it of record because of such inconsistency.</p> <p>2. An order refusing to receive such verdict and enter it of record because of its inconsistency is one involving the merits of the action, within subd. 4, sec. 8069, R. S., and is therefore appealable.</p>

<p> Attachment: Uncompleted service: Replevin: Estoppel: Evidence: Form of verdict. </p> <p>1. In replevin against a sheriff who had taken goods under a writ of attachment as the property of a third person, the goods were taken from his possession before he could make the inventory and appraisal thereof. The plaintiff also caused said third person to traverse the affidavit of the attachment, and prosecuted such traverse in his name. Held, that the plaintiff was estopped from claiming that the writ of attachment was not fully served because no inventory and appraisal were made.</p> <p>2. The evidence in such case is held sufficient to sustain a verdict to the effect that a bill of sale from said third person, under which the plaintiff claimed a part of the goods, was not executed until after the defendant had taken possession under the attachment</p> <p>3. In replevin, where the facts have been found by a special verdict, it is not error for the court to have the jury put their verdict in proper form.</p>

<p>APPEAL from the Circuit Court for Columbia County.</p> <p>Action to recover damages for personal injuries received by respondent in a wreck upon a private logging railroad owned and operated by appellant, October 31,1889. Haley was a helper or trainman upon said road, the equipment of the road consisting of an engine and several logging-cars, by which logs were brought from the logging camps to the appellant’s mill at Prentice. At the time of the accident the engine was drawing five cars or logging trucks loaded with logs over the road towards Prentice. Haley was riding on the forward end of the fourth car, when, for some reason, the chain which was wrapped around the logs on the third car broke, the logs upon said car fell or were thrown from the car, and the respondent was caught and thrown by one or more of such logs a considerable distance, suffering very severe injuries, which finally necessitated the amputation of both legs. The train broke in two parts and came to a stand-still. The claims of the parties as to the cause of the accident, and other facts necessary to the understanding of the case, will be found stated in the opinion.</p> <p>A special verdict was rendered, as follows: “ 1. Was the road of the defendant company, so far as relates to its road-bed, its ties, its iron, and the -surfacing of the ties, in a reasonably safe condition before and at the time the plaintiff received the injuries of which he complains? Answer. It was not. 2. Did the defendant company use reasonable and ordinary care in selecting and providing the wrapping chains with which the logs were bound on the cars at the time the plaintiff was injured? A. They did not. 3. Was the wrapping chain on the third car from the engine of good material and of sufficient strength and size, at the time the plaintiff was injured, for the ordinary purposes for which it was used ? A. It was not. 4. Was there a large log lying on the right-hand side of the track going north, at or near the place where the plaintiff was injured? A. Yes. 5. If, in answer to tbe preceding question, you answer there was snob a log there, then state the diameter of it. A. Thirty inches. 6. How near was such log, mentioned in the preceding two questions neit above, if you find there was one, to the lower end of the bunk, go called, on the right-hand side of the cars as they passed such log? A. Six inches. 7. Was such log so near the track as to become a dangerous obstruction to- cars passing there loaded with logs? A. Yes. 8. Was such log one of the direct causes which wrecked the train that day, causing the' injuries to the plaintiff? A. Yes. 9. Hid any of the logs on tiie third car in the train that day come in collision with such log mentioned in the preceding question? A. Yes. 10. How long had such log been there on the right-hand side of the track? A. Two weeks. 11. How long had that log remained there, to the knowledge of O. H. Yan Husen, the president of the defendant company ? A. Two weeks. 12. How long had such log been there, to the knowledge of G-eorge Cotter, the section foreman of the defendant company? A. Two weeks. 13. Hid the plaintiff, prior to the accident, know that the log was lying in the ditch near the track? A. No. 14. If, in answer to the preceding question, you say that he did, then say whether he comprehended that the same was a dangerous obstruction to the running of cars along the track there. 15. What caused the breaking of the wrapping chain on the third car the day the accident occurred? A. By a log on the third car coming in contact with the log in the ditch. 16. Was it a part of the plaintiff’s duty, under his employment by the defendant company, before and at the time he was injured, to attend to the brakes on the defendant’s logging train between the cars loaded with logs-? A. Yes. 17. Had the plaintiff been directed-by O. H. Yan Husen, prior to the accident, not to ride on the logging trains of the defendant, except on the engine or tender or at the rear end of the rear car in. the train? A. No. 18. Had be been so directed as mentioned in the next preceding question by any other -officer or agent of the defendant company, having authority from the company to give such direction? A. No. 19. Where was the plaintiff immediately preceding the time when he received his injuries? A. At his post of duty, between the third and fourth cars: 20. Was the' plaintiff in the exercise of ordinary care at the time he was injured? A. Tes. 21. Was the plaintiff guilty of any negligence which directly contributed to produce the injuries which he received? A. No. 22. Did the plaintiff complain, prior to the accident, to O. D. Yan Dusen and Charles L. Alverson of the insufficiency of the chains used for binding the logs on the cars? A. Tes. 23. If, in answer to the preceding question, you answer ‘ Tes,’ then state whether Charles L. Alverson promised that suitable chains should be procured. A. Tes. 24. Was Charles L. Alverson authorized to make such promises by the defendant company? A. Tes. 25. Did the plaintiff remain in the defendant’s employ an unreasonable length of time prior to his injury, relying upon such promise, under all the circumstances disclosed by the evidence in the case? A. No. 26. Was the defendant company guilty of any negligence directly contributing to produce the injuries which the plaintiff received? A. Tes. 27. What caused the wrecking of the train at the time in question, which resulted in the injury to the plaintiff? A. The log in the ditch. 28. What damages has the plaintiff sustained in consequence of the injuries which he received ? A. Fifteen thousand dollars. 29. Was engineer Sweet guilty of any negligence which contributed to the injury, in running the train at the place of the accident at the rate of speed shown in the testimony? A. No.”</p> <p>Judgment for plaintiff was entered on this verdict, from which defendant appealed.</p>

This action was commenced December 8,1888, to recover $1,181.08, with interest from January 20, 1888, as the alleged surplus of credits and assets over liabilities existing January 1, 1887, at which time the plaintiff was created out of a portion of the original territory constituting the defendant town. The complaint is in the appropriate form. The defendant’s answer, among other things, alleges a counterclaim to the amount of $1,894.15, with interest.

AotioN commenced in the supreme court to restrain the secretary of state from publishing certain notices of election.

This action is to recover money alleged to have been loaned by plaintiff to defendant. Erom early in 1884, until after the alleged cause of action herein accrued, the defendant owned and carried on a store in the city of La Crosse. He was largely engaged in other business, and gave but little personal attention to his store, which was managed and carried on principally by agents.

Ejectment for about sixty acres of land. The action was tried by the court, and the facts were all stipulated.

APPEAL frdm the Circuit Court for Lincoln County. This action was commenced March 14, 1891, to recover $2,277.45, with interest, as the alleged surplus of credits and assets over liabilities existing January 1, 1887, at which time the plaintiff was created out of a portion of the original territory constituting the defendant, district. The complaint is in the proper form. The answer is a general denial, except as to corporate character.

This is an action for the recovery of real estate in Lincoln county, in which the defendant claimed title under a tax deed executed and recorded May 21,1884, to John Corn-stock, through whom the defendant claims by subsequent conveyance.

<p> Highways: Liability of town for work done by overseer: Contracts. </p> <p>In the presence of another supervisor the chairman of a town board told the overseer of highways to fix a certain road so that it could be traveled. The town board afterwards allowed him part of his claim for the work done. Held, that as the board had not acted in employing him the town was not liable for the balance of his claim. It was-the duty of the overseer, under sec. 1233, B. S., to put the highway in repair.</p>

This is a bill in equity to restrain tbe sale of five separate forty-acre tracts of land in Richfield, Wood county, for taxes levied in the year 1887, on several grounds mentioned in the complaint, which, among other things, in effect alleged the incorporation and organization of the plaintiff under the laws of this state for the purpose of improving the navigation of the Yellow river in Wood and Juneau counties, having its office and chief place of business at Ne-cedah,…

Action for damages on account of the death of Anthony D. McCadden, who was run over by a switch engine in the yard of the W isconsin Central railroad, at Stevens Point, July 4, .1889. At the time of the accident, and for about a year previously, deceased was employed as a fireman upon switch engine No. 13 in said yard, and had been at work on the day of his death up to about 11:30 o’clock a. m., when he left his engine and started across the yard to get his dinner.

The complaint in this action charges the defendants, Jfitehell, the sheriff of Waushara county, and George Goult, Ms deputy, with the wrongful taking and conversion of certain personal property of the plaintiff of the value of $167.

The action is to recover damages for the wrongful taking and conversion by defendants of ten swarms of bees, the property of plaintiff. The bees were seized by the defendant Hermann, a constable, by virtue of an execution purporting to have been issued on a judgment recovered by the defendants 1Wright and Millerd against plaintiff, and sold under such execution. Hermann justified the seizure and sale of the property under the execution.

<p>Flections: Title to office: Quo warranto; Counting votes: Tie.</p> <p>1. Where there has been a mistake in the canvass of votes by the board of canvassers, the remedy by a recount is not exclusive, but the courts may, in quo warranto proceedings, inquire into the facts and go behind the returns'to determine the right to an office.</p> <p>2. In canvassing the votes cast for mayor of a city the board found two votes folded together. If both had been counted there would have been one vote more than the number of names on the poll list, from which, however, the name of one person who voted had been omitted by mistake. Supposing the two votes folded together to be for the same candidate, the board laid aside one of them, and counted the other, which was for M. As the result of the canvass the board certified that M. had received 148 votes and B. 147 votes. It. was afterwards found that the vote laid aside and not counted was for B, Held, that there was a tie vote. The board should have counted both the votes so folded together, or, under sec. 43, B. S., should have destroyed both if they were of the opinion that both were voted by one elector.</p> <p>' S. There being a tie vote at an election for mayor of the city of Clinton-ville, and cuts not having been drawn for the office according to the statute, there was no election, and the incumbent of the office was entitled to hold over until his successor should be elected and qualified.</p>

The complaint alleges, in effect, that the plaintiff was, November 6, 1890, the lessee of certain rooms in Smith’s block in New London, wherein the New London Times was published, and entitled to the possession thereof; that on that day, at New London, the defendants wrongfully, maliciously, and without reasonable or probable cause procured a warrant charging the plaintiff with having committed the crime of burglary by breaking and entering said office on the day named; that…

The action is upon a promissory note dated April 18, 1876, due ninety days after date. The complaint alleges that no part of the note has been paid, except three dollars paid on the 17th day of April, 1882.

This action was brought to recover $1,000, the amount of a policy of insurance issued June 14, 1890, to the plaintiffs on a certain barn situated in the city of St. Paul.

Mandamus against the board of supervisors of the town of Pepin, in Pepin county, to compel such board to lay out and open a certain highway therein. In July, 1890, a proper petition to lay out such highway was presented to said supervisors, and such proceedings were had thereon that the supervisors made an order refusing to lay out and establish such highway.

<p>Habeas corpus.</p> <p>Even if sec. 4697, B. S., as amended by ch, 164, Laws of 1883, is invalid in so far as it prescribes the procedure after a disagreement on the issue of insanity in a criminal case, still, where the court has jurisr diction of the subject matter and of the person of the accused, its judgment after a trial in accordance with that section is not void for that reason, and the remedy of the prisoner is not by writ of habeas corpus but by writ of error.</p>

<p> Cemeteries: Establishment: Consent of municipal-authorities, how given: Sufficiency of application. </p> <p>1. Under sec. 1454, R. S. (providing that no corporation shall lay out or establish any cemetery within certain limits in or near a city or village, “ without first obtaining the consent'of the municipal authorities thereof”), a written communication, addressed to the mayor and common council of a city, and signed by the pastor, secretary, and treasurer of an incorporated religious society, asking that permission be granted to such society to maintain a cemetery on certain lands, is a sufficient application.</p> <p>2. The “ consent of the municipal authorities,” in such a case, is sufficiently given by the adoption of a motion to that effect by the common council, such motion being entered on the record of its proceedings.</p>

Groix County. This is a bill in equity to set aside a deed executed by the defendants H. D. Stockman and wife July 3, 1890, whereby they conveyed to the defendant Campbell Fletcher the forty acres of land described, in St. Croix county, which deed recited a consideration of $500 and was recorded in the register’s office of St. Croix county July 5, 1890, on the ground that said deed was given without consideration and with the intent to hinder, delay, cheat, and defraud the…

Action for injuries alleged to have been caused by a defective sidewalk. Tbe plaintiff, Mary JSvermcm, on tbe evening of tbe 15th of November, 1888, while upon tbe sidewalk on tbe north side of West Eagle street in tbe defendant city, fell down a stairway which leads to tbe basement of tbe Hotel Royal. Tbe stairway was parallel to and adjoining tbe building.

This was an action of replevin commenced in justice’s court for the recovery from the defendant of one New Deal gang plow of the value of $25, and one Esterly binder of the value of $35, in which judgment was had for the plaintiff, and the defendant appealed therefrom to the circuit court for Dane county. The defendant applied to the circuit court for and obtained leave to amend his answer and to set up a counterclaim.

<p>APPEAL from the Circuit Court for Marquette County.</p> <p>The facts are stated in the opinion.</p>

Croix County. The principal defendant, Hicks, was a merchant doing business at New Richmond. On December 22, 1890, he executed and delivered to the plaintiffs, in their firm name of S. A. Maxwell c& Co., a promissory note for §1,082.93, payable February 15, 1891, with a warrant of attorney thereto attached, authorizing the entry of judgment thereon.

<p> (1) Municipal corporations: Statement of wrong to common council, before tort action will lie: Charter construed: “ Claim or demand.” (2) Unauthorized appeal: Jurisdiction. </p> <p>t. The charter of the city of Antigo (ch. 197, Laws of 1S89) provides, in sec. 139, that “ no action in tort shall lie or be maintained against the city ” unless a statement of the wrong, etc., shall be presented to the common council within sixty days; in sec. 140, that no action shall be maintained “ upon any claim or demand ” until it has been presented to the common council and “been disallowed in whole or in part; ” and in sec. 141, that the determination of the council “ disallowing in whole or in part any claim ” shall be final unless an appeal is taken. Held, that as to torts there is a right of original action against the city upon presentation of the statement as required, but no determination by the council and no appeal are provided for. The words “claim or demand” in secs. 140, 141, refer only to such as arise ex contractu.</p> <p>2. No appeal being authorized by the charter in case of a tort, the circuit court to which such an appeal is taken obtains no jurisdiction thereof, even though the parties appear.</p>

This is an appeal from an order overruling a demurrer to the complaint or claim of the plaintiff filed against the estate of George W. Gerry.

, 2. Since the oity is ultimately liable, and all the taxable property in it may be resorted to for the payment of any sum not realized from the special assessment, the statute providing for such assessment is not in contravention of sec. 13, art. I, Const., prohibiting the taking of private property for public use without just compensation. APPEAL from tbe Circuit Court for Douglas County.

In December, 1889, James Bardon and H. E. C. Nichols' entered into a contract in writing, in and by which Bardon agreed to sell and convey to Nichols certain lots in Superior, Douglas county, upon full performance by Nichols of certain covenants and agreements specified in such instrument.

Action to recover the amount due upon a school order, payment of which had been refused. The facts are stated in the opinion. The trial was by the court, a jury having been waived, and resulted in a judgment for the defendant. The plaintiffs appeal. 1.

Replevin for 100 cords of cedar alleged to have been cut on plaintiff’s land. It appeared on the trial that cedar was cut by the defendant Lynn upon a quarter section of land which belonged to the plaintiff up to a certain time in the spring of 1890. It was stipulated that plaintiff had the title and possession of the land from which the cedar was cut up to March 27, 1890.